Citation Nr: 0942154
Decision Date: 11/05/09 Archive Date: 11/12/09
DOCKET NO. 06-34 467 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for traumatic arthritis,
left knee.
4. Entitlement to service connection for a psychiatric
disability including anxiety, depression and psychosis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Amy R. Grasman, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1981 to February
1982.
This appeal comes before the Board of Veterans' Appeals
(Board) from a May 2005 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Des Moines, Iowa.
A video conference hearing was scheduled in August 2008. The
Veteran failed to appear for this hearing. The Veteran did
not demonstrate good cause for his failure to appear for the
hearing and did not indicate a desire for another hearing, as
such, the Board will continue with appellate review.
The issue of entitlement to service connection for PTSD is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. The Veteran has been notified of the evidence necessary to
substantiate his claim, and all relevant evidence necessary
for an equitable disposition of this appeal has been
obtained.
2. The medical evidence of record shows that bilateral
hearing loss manifested many years after service and was not
related to noise exposure in service.
3. The medical evidence of record shows that tinnitus did not
manifest in service and was not related to service.
4. The medical evidence of record shows that left knee
arthritis manifested many years after service and was not
related to an in-service injury.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by service; nor may it be presumed to be incurred therein.
38 U.S.C.A. §§ 1111, 1112, 1113, 1131 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2009).
2. Tinnitus was not incurred in or aggravated by service. 38
U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2009).
3. A left knee disability, with arthritis, was not incurred
in or aggravated by service; nor may it be presumed to be
incurred therein. 38 U.S.C.A. §§ 1111, 1112, 1113, 1131
(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper notice from VA must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. 38 C.F.R. § 3.159(b)(1). This notice must be
provided prior to an initial unfavorable decision on a claim
by the agency of original jurisdiction (AOJ). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
Here, the Veteran was sent a VCAA letter in January 2005 that
addressed the notice elements and was sent prior to the
initial AOJ decision in this matter. The letter informed the
appellant of what evidence was required to substantiate the
claims and of the appellant's and VA's respective duties for
obtaining evidence. The appellant was also asked to submit
evidence and/or information in his possession to the AOJ.
After the initial adjudication, the Veteran was also sent a
letter in March 2006 setting forth the provisions in Dingess
v. Nicholson, 19 Vet. App. 473 (2006).
Although the VCAA duty to notify was satisfied subsequent to
the initial AOJ decision, the Board finds that this error was
not prejudicial to the appellant because the actions taken by
VA after providing the notice have essentially cured the
error in the timing of notice. Not only has the appellant
been afforded a meaningful opportunity to participate
effectively in the processing of his claim and given ample
time to respond, but the AOJ also readjudicated the case by
way of a September 2006 statement of the case and a July 2008
supplemental statement of the case issued after the notice
was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (where notice was not provided prior to the AOJ's
initial adjudication, this timing problem can be cured by the
Board remanding for the issuance of a VCAA notice followed by
readjudication of the claim by the AOJ) see also Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as an SOC or SSOC, is sufficient to cure a
timing defect). Additionally, any error regarding the
Dingess notice was harmless given that service connection is
being denied and no rating or effective date will be assigned
with respect to the claimed disabilities. For these reasons,
it is not prejudicial to the appellant for the Board to
proceed to finally decide this appeal as the timing error did
not affect the essential fairness of the adjudication.
VA also has a duty to assist the veteran in the development
of the claim. This duty includes assisting the veteran in
the procurement of service treatment records, pertinent
medical records and providing an examination when necessary.
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained service treatment
records, DD Form 214, private medical records and VA medical
records. The appellant was afforded VA medical examinations
in April 2005. Significantly, neither the appellant nor his
representative has identified, and the record does not
otherwise indicate, any additional existing evidence that is
necessary for a fair adjudication of the claim that has not
been obtained. Hence, no further notice or assistance to the
appellant is required to fulfill VA's duty to assist the
appellant in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
SERVICE CONNECTION
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303(a) (2009). This may be shown by affirmative evidence
showing inception or aggravation during service or through
statutory presumptions. Id.
To establish direct service connection for a claimed
disorder, there must be (1) medical evidence of current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service occurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. See 38 C.F.R. § 3.303(b)
(2009). If chronicity in service is not established, a
showing of continuity of symptoms after discharge is required
to support the claim. Id.
Where a veteran served 90 days or more during a period of war
or during peacetime service after December 31, 1946, and a
chronic disease such as arthritis and sensorineural hearing
loss manifests to a degree of 10 percent within one year from
date of termination of such service, such disease shall be
presumed to have been incurred in service, even though there
is no evidence of such disease during the period of service.
This presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2009).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2009).
Hearing Loss
The Veteran asserts that his current bilateral hearing loss
is related to noise exposure in service. The objective
medical evidence of record; however, does not show that
hearing loss is related to service.
Initially, the Board notes that hearing loss was not shown in
the service treatment records. In a February 1981 report of
medical history, the Veteran reported that he did not have
hearing loss. In a March 1981 enlistment examination, the
Veteran's hearing was within normal limits in each ear. In a
February 1982 medical examination, the Veteran's hearing was
also within normal limits bilaterally.
Additionally, the objective medical evidence suggests that
the hearing loss began in 2002. In a February 2003 medical
record, the Veteran noted decreased hearing for the past few
days. He noted decreased hearing in both ears in September
2002. An audiogram indicated bilateral mild borderline
moderate mid and high frequency sensorineural hearing loss
with good speech discrimination. The assessment noted that
there appeared to be some progression of his sensorineural
hearing loss compared to the previous audiogram in October
2002.
In an October 2002 private treatment note, a physician noted
that the audiograms revealed bilateral down sloping to mild
sensorineural hearing loss with a dip at 4000 Hertz which
began two weeks after a cervical fusion surgery.
Further, the objective medical evidence does not show a nexus
between the current diagnosis of hearing loss and service.
In an April 2005 VA Compensation and Pension Examination, the
claims file was reviewed. The examiner noted that the
Veteran's hearing was within normal limits at enlistment and
discharge. The examiner also noted October 2002 treatment
records showing that hearing loss began one month prior. The
examiner considered that the Veteran had noise exposure in
service as an airman and noise exposure after service working
in factories and construction. After a physical examination
and audiogram, the Veteran was diagnosed with bilateral
sensorineural hearing loss. The examiner opined that since
the Veteran's hearing was within normal limits at discharge
from service, the current hearing loss was not related to
service.
The Board also considered private medical records in March
2007. These records show bilateral sensorineural hearing
loss. The examiner considered the Veteran's recited history
of noise exposure and found that it was certainly possible
that the hearing loss was related to occupational noise
exposure as described by the Veteran. However, the hearing
loss, by itself, did not indicate when the noise exposure
occurred or the type of noise exposure. The Board finds that
the private physician could not confirm the causation of the
hearing loss without resorting to speculation. Service
connection may not be based on speculation or even remote
possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet.
App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611
(1992) (medical opinions, which are speculative, general or
inconclusive in nature, cannot support a claim). As such,
this opinion does not support the claim for service
connection because it does not have the required degree of
medical certainty required for service connection. Hinkle v.
Nicholson, 19 Vet. App. 465 (2005) (medical opinions based on
speculation are entitled to little, if any, probative value);
see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (a
medical opinion based on speculation, without supporting
clinical data or other rationale, does not provide the
required degree of medical certainty).
In contrast, the VA opinion is adequate. It is based upon
consideration of the Veteran's prior medical history and
examinations, and also describes the disability, in
sufficient detail so that the Board's evaluation of the
disability will be a fully informed one. See Stefl v.
Nicholson, 21 Vet. App. 120, 123 (2007). The examiner also
provided a rationale for his conclusion. As such, the Board
finds the VA examination probative. See Prejean v. West, 13
Vet. App. 444, 448-49 (2000) (factors for assessing the
probative value of a medical opinion are the physician's
access to the claims file and the thoroughness and detail of
the opinion).
Based on the foregoing, the Board finds that service
connection for bilateral hearing loss is not warranted.
Although the Veteran has a current diagnosis of hearing loss,
the preponderance of the evidence shows that it began in
2002, many years after service. As there is no medical
evidence depicting symptoms of or a diagnosis of hearing loss
within one year after separation from service, service
connection cannot be presumed. See 38 C.F.R. §§ 3.307,
3.309. Further, the private records do not show that hearing
loss was related to service. The VA medical examination also
does not show that hearing loss was related to service.
Without competent medical evidence linking the Veteran's
disability to service, service connection is not warranted.
The Board notes that the Veteran also submitted private
audiograms to support his claim. However, these records are
comprised of uninterpreted graphic representations of
audiometric data, which the Board may not interpret. See
Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (Board may not
interpret graphical representations of audiometric data).
Further, these examinations do not include an opinion
regarding etiology of the hearing loss.
The Board has considered the Veteran's contention that a
relationship exists between his hearing loss and service.
However, as a layman, without the appropriate medical
training and expertise, he is not competent to provide a
probative opinion on a medical matter such as etiology.
While a layman such as the Veteran can certainly attest to
his in service experiences and current symptoms, he is not
competent to provide an opinion linking that disability to
service. See Bostain v. West, 11 Vet. App. 124, 127 (1998),
citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See
also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge").
As the evidence does not provide a link between the current
disability and service, the preponderance of the evidence is
against this claim, the benefit-of-the-doubt rule does not
apply and the Veteran's claim for service connection for
bilateral hearing loss must be denied. See 38 U.S.C.A. §
5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).
Tinnitus
The Veteran asserts that tinnitus is related to service. The
service treatment records, however, do not show complaints
of, treatment for or a diagnosis of tinnitus.
The post-service medical evidence of record shows that the
Veteran noted ringing in his ears since spinal surgery in
September 2002. In an October 2002 private treatment note,
the Veteran reported a high pitched ringing sensation in his
ears for the past month. He also noted that he did not have
similar episodes in the past. The examiner noted excessive
noise exposure in the past. He was diagnosed with high
pitched tinnitus which began two weeks after a cervical
fusion surgery. The physician noted that he expected that
the tinnitus should resolve although there may be
difficulties due to the Veteran's cigarette smoking.
Additionally, in a February 2003 medical record, the Veteran
noted frequent bouts of tinnitus.
Although the Veteran has a current diagnosis of tinnitus, the
objective medical evidence of record does not show that it
manifested in service or is related to service. In an April
2005 VA Compensation and Pension Examination, the claims file
was reviewed. The Veteran reported cricket sounding tinnitus
in both ears which began 2 or 3 years prior. After a
physical examination, the examiner noted that the onset of
tinnitus was in 2002; therefore, it was less likely related
to service. The Board notes that the VA opinion is adequate.
It is based upon consideration of the Veteran's prior medical
history and examinations, and also describes the disability,
in sufficient detail so that the Board's evaluation of the
disability will be a fully informed one. See Stefl, supra.
As there is no evidence of tinnitus in service or objective
medical evidence that tinnitus is related to service, service
connection is not warranted.
The Board notes that the Veteran is not competent to provide
an opinion linking his tinnitus to service. See Espiritu,
supra. As the preponderance of the evidence is against this
claim, the benefit-of-the-doubt rule does not apply and the
Veteran's claim for service connection for tinnitus must be
denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
Gilbert, supra.
Left Knee
The Veteran asserts that his left knee disability, with
arthritis, is related to an injury in service. The Board
initially notes that the Veteran does have a current
diagnosis of a left knee disability. In a September 2000
private medical treatment note, the Veteran was diagnosed
with probable torn anterior crutiate, left knee. X-rays
revealed mild patellar degenerative changes.
The service treatment records show that in a February 1981
report of medical history, the Veteran reported that he did
not have a trick or locked knee or arthritis. He did report
that he had swollen joints. In a March 1981 medical
examination, the Veteran's lower extremities were clinically
evaluation as normal. In November 1981, the Veteran sought
treatment for his left knee. After physical examination, he
was diagnosed with a soft tissue trauma. In a February 1982
medical examination, the Veteran's lower extremities were
clinically evaluation as normal.
The objective post-service medical evidence of record,
however, does not show that the left knee injury was related
to service. The medical evidence shows that his current
disability was incurred many years after service. In
September 2000 private medical records, the Veteran indicated
that he injured his left knee two or three years prior when
he pushed his girlfriend's car when it was stuck in the snow.
He underwent surgery in January 2001.
Further, in an April 2005 VA Compensation and Pension
Examination, the claims file was reviewed. The examiner
noted the left knee treatment in service. The examiner also
noted the prior medical history of the Veteran, including the
treatment in 2000 and surgery in 2001. After a physical
examination and review of x-rays, the Veteran was diagnosed
with mild bilateral knee osteoarthritis and left knee ACL
rupture, status post reconstruction with mild laxity. The
examiner opined that it was less likely as not that the
contusion in service in 1981 was causative of the ACL rupture
of the left knee. The examiner noted that numerous
scientific studies have shown that patients are at increased
risk of degenerative changes of the spine, hips and knees
once the BMI exceeds 29. Also, patients who have a history
of working in physical labor-type activities have an
increased rick of degenerative changes in these regions.
Therefore, the examiner found that it was more likely as not
that mild degenerative changes of the bilateral knees were a
complication of his obesity and history of heavy physical
activity.
The Board notes that the VA opinion is adequate. It is based
upon consideration of the Veteran's prior medical history and
examinations, and also describes the disability, in
sufficient detail so that the Board's evaluation of the
disability will be a fully informed one. See Stefl, supra.
Additionally, in a March 2007 private medical assessment, the
physician considered the injury in 1981, previous medical
records and the prior surgery. The private physician
examined the Veteran. Based on the 1981 in-service records,
the physician noted that there were no signs of an anterior
crutiate injury in service. The physician considered the
history of trauma to his knee while pushing the car. The
physician found that it was more likely that the knee was
aggravated subsequently, rather than at the time shown in the
service records. The examiner noted that there was no other
interim evaluation and the examiner doubted that he could
provide any recommendation in terms of causation from 1981
and it would be more likely that it occurred later based on
the information provided in the records.
In spite of the injury in service, the competent medical
evidence of record shows that the left knee disability is
related to an injury after service. Both the VA examiner and
the March 2007 physician opined that the post-service injury
to the left knee while the Veteran was pushing the car was
related to his current disability. Neither examiner found
that the current disability was related to the 1981 in-
service injury. There is no other objective opinion of
record showing that the left knee disability was related to
service. Without competent medical evidence showing that the
current disability is related to service, service connection
is not warranted.
The Board notes that the Veteran is not competent to provide
an opinion linking his left knee disability to service. See
Espiritu, supra. As the preponderance of the evidence is
against this claim, the benefit-of-the-doubt rule does not
apply and the Veteran's claim for service connection for a
left knee disability must be denied. See 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
Service connection for traumatic arthritis, left knee is
denied.
REMAND
Unfortunately, a remand is required in this case. Although
the Board sincerely regrets the additional delay, it is
necessary to clarify the nexus opinion so that the Veteran is
afforded every possible consideration.
In the April 2005 VA Compensation and Pension Examination,
the Veteran was diagnosed with alcohol dependence, currently
in full remission; anxiety disorder, NOS; and personality
disorder, NOS. The examiner, however, was unclear in his
conclusion as to whether the veteran's disorders were related
to service. The context of the examination seems to suggest
that the disorders were not related to service, however, the
language used in the examiner's conclusion is contrary to the
tone of the opinion. Specifically, the examiner concluded
that it was "least as likely as not that his current
condition is related to his time in service." The Board
finds that this language is unclear when taken in context
with the remainder of the VA examination. As such, a remand
is necessary to clarify the VA examiner's opinion. See 38
C.F.R. § 3.159(c)(4) (2009).
Accordingly, the case is REMANDED for the following action:
1. Please return the VA examination to the
examiner for clarification of his opinion.
Specifically, the examiner should clarify
his statement: "least as likely as not
that his current condition is related to
his time in service."
If the same VA examiner is not available,
the veteran should be scheduled for
another VA examination with an appropriate
medical specialist to determine the
etiology of the current psychiatric
disability. The claims file must be made
available to and reviewed by the examiner
in conjunction with the examination, and
the examination reports should reflect
that such a review was made. All
pertinent symptomatology and findings
should be reported in detail. Any
indicated diagnostic tests and studies
should be accomplished. The examiner
should state whether the veteran's
disability is more likely than not (i.e.,
probability greater than 50 percent), at
least as likely as not (i.e., probability
of 50 percent), or less likely than not
(i.e., probability less than 50 percent),
causally or etiologically related to or
aggravated by active service.
2. The RO should then readjudicate the
issue on appeal. If the determination
remains unfavorable to the veteran, the RO
should issue a supplemental statement of
the case that contains notice of all
relevant actions taken, including a
summary of the evidence and applicable law
and regulations considered pertinent to
the issue. An appropriate period of time
should be allowed for response by the
veteran and his representative.
Thereafter, the case should be returned to
the Board for further appellate
consideration, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs